Posts tagged with "violence"

On The Authority of School Districts to Expel Students

It’s that time of year: Summer vacation is over. Labor Day has come and gone. Children now find themselves back into the daily routine of waking up early, getting ready for school, and attending classes. Each year, Boards of Education provide its students with booklets covering their code of conduct, and of notable interest is understanding how one’s conduct off school grounds can adversely impact in-school opportunities. That is, what authority does a school district have to expel students for out-of-school behavior?

Connecticut’s statutory scheme governing children (both generally and in the context of education) is particularly comprehensive, and an important section in the context of school discipline concerns expulsion. The General Statutes require expulsion for conduct not committed during school hours or on school grounds in two situations:

  1. The student carried (without a permit) a statutorily-enumerated weapon, or used one to commit a crime. Weapons covered include firearms, deadly weapons, dangerous instruments, and martial arts weapons.
  2. The student sold or distributed illegal drugs or attempted to do so.

Connecticut General Statutes § 10-223d(2).

State law permits expulsion of students if the out-of-school conduct violates school policy and is seriously disruptive of the educational process. This standard was discussed in the Connecticut Supreme Court’s decision in Packer v. Board of Education of the Town of Thompson, 256 Conn. 89 (1998), which involved a student in possession of marijuana and drug paraphernalia in his car while not at school. When a school board needs to determine whether this threshold has been met, it considers numerous factors:

  1. Whether the incident occurred within close proximity of a school
  2. Whether other students from the school were involved or whether there was any gang involvement
  3. Whether the conduct involved violence, threats of violence or the unlawful use of a weapon, … and whether any injuries occurred
  4. Whether the conduct involved the use of alcohol

Connecticut General Statutes § 10-223d(1).

Depending on the nature of the conduct, the punishment imposed can be severe and particularly detrimental to a child’s educational and recreational opportunities. If your child is facing suspension or expulsion for conduct committed on or off of school grounds, it is imperative that you seek counsel from an experienced education law practitioner. If you have any questions regarding education legal matters, please do not hesitate to contact Attorney Joseph C. Maya at the Maya Murphy, P.C. Westport location in Fairfield County at (203) 221-3100 or at JMaya@mayalaw.com.

Written by Lindsay E. Raber, Esq.

Bullying In Schools: Are We Doing Enough to Protect Children?

Bullying In Schools: Are We Doing Enough to Protect Children?

On September 22, 2010, Seth Walsh should have been skateboarding or playing baseball, listening to his new favorite song, perhaps, or talking on the phone with friends.  He should have been happy and care free.  After all, Seth was only thirteen years old, an age when children should be laughing and dreaming of the endless opportunities that lie ahead.  Instead, Seth Walsh was lying beneath a tree in his backyard unconscious, no longer breathing.  He had just hung himself.  After spending the next week on life support, with his mother looking on, Seth ultimately died.

And just days earlier on the other side of the country, Tyler Climenti, an eighteen year old student at Rutgers posted what would be his last Facebook message, “Jumping off the gw bridge sorry.” Later that night Tyler took his own life as well- throwing himself into the dark and frigid water of the Hudson River.

In September, 2010, within nineteen days, four teenagers from around the country committed suicide.  William Lucas, from Greensburg Indiana was only fifteen, Asher Brown from Houston Texas was thirteen.  Like Seth, Billy hung himself.  Asher shot himself in the head with one of his step-father’s guns.  The common link?  All four had been relentlessly tormented at school.  Shining new light on what has become a national epidemic, these cases illuminate the devastating and increasingly deadly effects of bullying.  There is some debate over whether bullying is a new phenomenon or whether children are simply reacting differently.  Whatever the case may be, one thing is clear- we must take action to protect the destruction of more innocent lives.

The Department of Education recently entered the fray, releasing a “Dear Colleague” letter in which it urged school districts to address bullying within the classroom, providing school administrators with guidance on how to end harassment.  Additionally, within the last couple of years, many states, including New York and Connecticut, have passed anti-bulling legislation.  At what point should a school district be held liable when it fails to prevent bullying?  The answer to that question is not clear-cut.  Indeed, parents face several legal challenges when they pursue a case.

For instance, in 2008, the Superior Court at New Britain held that parents of a Berlin High School student could not maintain a negligence cause of action against the school district, the administrators or the child’s coach.  In Dornfried v. Berlin Board of Education, et al, Robby Dornfried’s parents alleged that while a freshman and sophomore at the high school, and a place-kicker on the varsity football team, their son was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates.  They further alleged that school administrators, the guidance counselor, even Robby’s coach, knew of the problem, but did nothing to stop the behavior.  Robby eventually sought medical treatment and ultimately transferred to Northwest Catholic High School halfway though his sophomore year.

Analyzing whether the principal of governmental immunity barred suit, the Court recited the general rule that a municipal employee may be liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts- those performed wholly for the benefit of the public and supervisory or discretionary in nature.  Agreeing with the defendants, the Court found that the supervision of school children, not only during school hours, but at extra-curricular events such as football practice or a football game is a discretionary matter.  It next addressed whether it was appropriate to apply any of the exceptions to the immunity doctrine.  Generally, there are three:

  1. Liability may be imposed for a discretionary act when the alleged conduct involved malice, wantonness or intent to injure.
  2. Liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws.
  3. Liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.

Ignoring the first two exceptions, the Court addressed whether Robby was an “identifiable person subject to imminent harm” under the law.  Citing Supreme Court precedent, Judge Trombley, found he was not, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.  The Court ultimately held that although participation in school sponsored athletic programs is most likely encouraged, the participation is on a purely voluntary basis and, therefore, governmental immunity barred Robby’s negligence claims.

Earlier this year the Superior Court at New Haven reached a different conclusion in a bullying case.  In Esposito v. Town of Bethany, et al, the father of an elementary school student brought suit against the Town of Bethany, the Board of Education and the Bethany Public School District alleging negligence.  The student, Christina, was allegedly teased on a regular basis and at one point another student threw a ball at the back of her head during recess.  Christina sustained severe injuries “leaving her with an acquired brain injury and severe optical dysfunction.”

In response to Connecticut’s anti-bulling legislation, which became effective July, 2002, the Town of Bethany adopted a comprehensive anti-bullying policy.  The Plaintiff’s pointed to that policy arguing that the school failed to follow it and, thus, their acts were ministerial rather than discretionary in nature.  The Court framed the issue as whether, “…a detailed method of behavior was laid down for administrators and teachers for dealing with bullying depriving them of any judgment or discretion, or that, actions were dictated to deal with the problem that involved merely the execution of an established policy.”  Leaving this question unanswered, the Court ultimately erred on the side of caution, allowing the plaintiff an opportunity to present the facts at trial.

Later in its decision the Court addressed whether the “identifiable person subject to imminent harm” exception would apply if the school’s actions were in fact discretionary.  In doing so, the Court hinted at expanding its view of the doctrine in the context of school bullying.  The Court interpreted prior case law as suggesting that the only identifiable class of foreseeable victims is that of school children attending school during school hours, but went on to suggest, “[b]ut if a clearly identifiable person, child or adult, is exposed to imminent harm then the exception could apply also if that individual is exposed to imminent harm,” continuing, “an individual may be identifiable for purposes of the exception to qualified immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition.”

In ruling in Christina’s favor, the court also noted that the appellate courts have relaxed the “identifiable person” portion of the analysis as it pertains to school children stating simply, “they are a foreseeable class to be protected.”  The Court concluded it must assume a similarly protective attitude will be applied in examining the “imminent harm” requirement stating, “bullying is condemned by state statute, children must attend schools, children are not as capable of defending themselves, they are vulnerable in the entire school area where unsupervised conduct prevails, and the bullying concept includes… a particular child subject to these acts.”

Whether a victim of bullying will be successful in bringing a claim against a school district will depend heavily on the facts and circumstances of the case as well as the theory of liability, the state in which the claims are made and the causes of action asserted.   As set forth above, in Connecticut governmental immunity may preclude recovery altogether unless the victim can demonstrate the application of an exception is appropriate.

By: Michael D. DeMeola

If you have any questions regarding bullying in schools, or any special education law matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Protective Orders and Domestic Violence: Full Hearings Offer Expedited Justice

Next week, the Connecticut Supreme Court will officially release an opinion holding that people accused of domestic violence crimes will be entitled to an evidentiary hearing “within a reasonable time” before a full protective order would continue to restrain them from their homes – and from their children – while criminal proceedings are ongoing. Very often, in the context of divorce proceedings, an unfortunate occurrence will result in the arrest of one spouse or the other, with the result that a party is temporarily removed from the marital residence to protect the victim (and perhaps the children) from a threat of violence. However, whereas criminal defendants were and are always entitled to the presumption of innocence as well as a full evidentiary, adversarial proceeding to determine guilt or innocence (a trial), those individuals who are removed from the home by way of a criminal protective order were often not given the same opportunity for a “hearing,” beyond the limited oral argument of a defendant’s attorney and the opposition from the State’s Attorney and the Office of the Victim’s Advocate. Now, in the matter of State v. Fernando A., (SC 18045), the Supreme Court of this state has held that our statutes do indeed afford subjects of a protective order the right to a full evidentiary hearing, with witnesses and cross examination, “within a reasonable time” – so long as the defendant’s attorney timely requests such a hearing. This mechanism will serve to insure that full protective orders are properly issued only in cases in which imminent physical harm indeed faces a spouse or children within a household. While requiring an additional expenditure of judicial resources, these hearings (for so often as they are requested and not waived by defendants), should also act to minimize those regrettable cases where spouses initiate criminal proceedings in bad faith or upon false claims, in order to gain leverage in pending or future divorce proceedings. Whether by protecting the victims of abuse or by protecting those accused of the same, adversarial evidentiary hearings are the cornerstone of our judicial system. Those in contact with the system, under any circumstances, should be confident that their legal advisors are well-versed in the law and familiar with recent case developments.

If you have any questions about this posting or confidential inquiries concerning the subject matter, please contact Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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Child Visitation: Privileges and Limitations

Parties entering a custody dispute or a divorce proceeding often inquire about visitation privileges by the so-called “non-custodial parent” – that is, the parent whose home is not the primary residence of the minor child.

Entirely separate from the determination of legal custody (which relates to the parties’ arrangements for major legal decisions to be made for and on behalf of the minor child) is the subject of a visitation arrangement, also sometimes referred to as a “parental access plan.” Regardless of which parent is awarded legal custody, a non-custodial parent has a right to visit with his or her child, although such visitation is not guaranteed to be unfettered and unrestricted in all circumstances.

In the best case scenario, the parties or their lawyers may arrange for “flexible, liberal rights of visitation” for the non-custodial parent, which might mean that the parties work out their access schedule amongst themselves, rather than reducing the intricacies of a schedule to writing. In some instances, the parties might follow a broad-brush, general guideline for visits and holiday scheduling which ebbs and flows according to the parties’ schedules and the child’s activities and needs.

On the other end of the spectrum, visitation by a non-custodial parent can be suspended, temporarily denied, or restricted in some fashion by a court if it is found that a parent’s visitation with a minor child would be adverse to that child’s best interest. If it can be demonstrated in a court of law that a child’s personal safety, physical, mental, or emotional well-being, would be negatively and seriously impacted by visitation with a parent, it is likely that such a parent’s visitation will be severely limited, if not suspended entirely.

However, any restriction of a parent’s ability to spend quality time with his or her child is not taken lightly – not by attorneys, and not by the courts. Before taking such drastic measures, courts will look for compelling, factual predicates based on very specific, presently existing circumstances. Before any type of restriction on visitation, a non-custodial parent has a right to a full evidentiary hearing, an opportunity to present and cross-examine witnesses, and a chance to argue to a court that the custodial parent has not established that continued, unlimited visitation would be injurious to the minor child’s best interests.

There are limited situations in which courts deem it appropriate to deny visitation entirely; others in which visitation is restricted in time, place, or manner; still others in which visitation is required to be supervised by a third party, such as a family member or an independent agency.

Obviously, acts or omissions by the non-custodial parent which have directly impacted the child (such as cases of physical abuse, or outright neglect for the child) are looked at most critically and could potentially result in the most drastic of remedies to protect a minor child.

Of course, there are certain other factors which could – in isolated cases – result in restricted visitation by a non-custodial parent. Violence or the threat of violence on the part of the non-custodial parent will be considered as an important factor, provided the evidence offered is competent and survives judicial scrutiny. In very extreme cases only, a mental illness or a psychiatric condition could impact visitation time, but only where it is established, proven, and accepted by a court that there would be harm to the child as a result of the illness if visitation were to take place.

More commonly, issues concerning substance and/or alcohol abuse could and may impact visitation by a non-custodial parent, especially where the behavior is found to be likely to jeopardize a minor child’s welfare. Even in these cases, with the best interests of the child in mind, courts are likely to favor a continued, healthy and loving relationship between the minor child and his or her non-custodial parent, provided that the visitation environment is such that the child will not be harmed or put at risk.

Whether a visitation arrangement will be “flexible and liberal” or heavily regulated is dependent on the factual circumstances of each case, the weight of the evidence, the credibility of the parties and their witnesses, and what is determined by a court to be the best interests of the minor child or children. A legal advisor in this area is challenged not merely to advance a client’s desires, but to simultaneously consider and protect the welfare of the minor child (and the parent-child relationship) when advising his or her client.

Any questions about this posting or confidential inquiries concerning the subject matter, may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

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